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Senator Feinstein’s New Bill: 'It’s a Travesty'

Proposal would make it near impossible for restored or newly recognized tribes to open casinos

It’s known in Washington as “the Friday dump” – news that’s released late on Friday in the hope that the media won’t notice it until at least Monday.

That was the first thing people noticed about Sen. Dianne Feinstein’s newest version of her anti-Indian gaming bill, which was introduced late on Friday, April 8. The second thing is that the bill, co-sponsored by Sen. Jon Kyl, is misnamed “The Tribal Gaming Eligibility Act.”

“Instead of naming it the Tribal Gaming Eligibility Act it really ought to be named the Anti-Gaming Act,” said Joe Valandra, Sicangu Lakota, and principal owner and president of VAdvisors, LLC, a specialty advisory firm.”It’s clearly designed to effectively stop any tribe that currently isn’t gaming or any tribe that doesn’t have land eligible for gaming from gaming. And she did it on a Friday afternoon when the press is clearly focused on the shutdown of the government to avoid attention.”

According to a summary that accompanied the proposed legislation, the Feinstein bill “seeks to end the practice of ‘reservation shopping’ when casinos are involved.” So Feinstein’s bill would amend Section 20 of the Indian Gaming Regulatory Act (IGRA) to require tribes seeking to open casinos on land acquired after the passage of the act in 1988 to demonstrate both a modern and an aboriginal connection to the land they wish to game on – two totally random new requirements -- or go through what is called the “two part determination.”

Valandra said the new requirements present “artificial hurdles to inhibit or stop tribes to game on land that they would otherwise legally be entitled to possess and game on. Frankly, my word would be, it’s a travesty,” he said.

Section 20 of IGRA puts forward a general prohibition against Indian gaming on trust lands acquired after October 17, 1988, the date IGRA was enacted, and then provides a number of exceptions to the prohibition, including land within or contiguous to a tribe’s existing reservation; land for tribes without reservations; land within the tribe’s last recognized reservation; land claim settlements; initial reservations for newly acknowledged tribes; and restored lands for restored tribes.

The most controversial and onerous exception is the Two Part Determination in which the Interior Secretary determines that a tribe can conduct gaming on its land acquired after October 17, 1988 if it’s in the “best interest” of the tribe and is not detrimental to the surrounding community. The determination requires the governor’s approval.

Tom Rodgers, the owner of Carlyle Consulting, said Indian country will closely review and monitor the Feinstein proposal. “Even though Sen. Feinstein has chosen to introduce her legislation late on a Friday afternoon during a crisis dealing with a government shutdown, Indian country will remain vigilant so that the rights of all Native Americans are protected,” Rodgers said. “We will conduct our due diligence and we will consult all of the tribes so that all tribal voices are equally heard. I would also hope the senator proceeds in regular order – introduction, committee hearing, floor debate, conference. That way the process will have transparency, accountability and integrity.”

This is the second time in less than six months that Feinstein has put forward a bill to restrict Indian gaming on trust lands. Last fall, Feinstein used the Interior Department to provide drafting services for a controversial bill that would also require a tribe to have modern and aboriginal connections to any gaming land the secretary might acquire in trust. The bill died in the lame-duck session of Congress just before the New Year, but tribal leaders expressed outrage that it had been developed behind closed doors with the involvement of high level Interior officials – and without consultation with the Indian nations.

Wilson Pipestem, a partner in Ietan Consulting, predicted that Feinstein’s new bill would not be well received in Indian country.

“I expect that Indian tribes will strongly oppose the legislation introduced by Senators Feinstein and Kyl today,” Pipestem said. “It fails to address the most critical issues voiced throughout Indian Country on the protection of aboriginal lands.”

Feinstein’s bill provides a number of specific definitions for proving both modern and aboriginal connections to the land including, in part, that the land must be located within a 25-mile radius of an existing reservation or an area where “a significant number” of tribal members live; that the tribe must demonstrate “a temporal connection to, or routine presence on” the land from October 17, 1988, to the present time; that the tribe must have filed the land into trust application with the Interior Department secretary within five years of the date it was recognized or restored; and that the tribe was not conducting gaming on any other land. Proving an aboriginal connection to the land would include, among other things, that it must be “an area in which the unique language of the Indian tribe has been used.” The proposal does not explain how a tribe would determine that its language had been used in an area.

The intent of the bill undoubtedly is to make it more difficult for tribes to conduct gaming on lands acquired after 1988, agreed Kathryn Rand, a co-founder and co-director with Steve Light of the Institute for the Study of Tribal Gaming Law and Policy, a component of the Northern Plains Indian Law Center at the University of North Dakota School of Law.

“We have said before that there seems to be very little evidence that so-called ‘reservation shopping’ is an issue that calls for legislative amendment of IGRA; instead, the evidence supports the idea that IGRA's current constraints in section 2719 are working to appropriately limit tribal gaming operations on newly acquired lands. Relatively few tribes actually operate gaming under these exceptions, and none is easy for a tribe to meet,” Rand said.

The two-part determination – the “best interest” determination -- is the only exception under IGRA that doesn't require some kind of historical connection to the land in question either in IGRA itself or through the land-into-trust process, Rand noted. “None is easy to meet, and the best-interest exception is extremely difficult to meet, particularly because it gives the state governor effective ‘veto’ power over the tribe's application.”

So, the proposed addition of the modern and aboriginal connections not only seems unnecessary, but it also reflects the highly politicized nature of Indian gaming, Rand said. “This isn't really about ‘reservation shopping,’ it's tribal casino NIMBYism (Not In My Back Yard). We think Congress should be extremely cautious about further limiting the most successful economic development tool tribes have available to them,” Rand said.

The obstacles Feinstein’s proposal presents to gaming on newly acquired lands “go far beyond what Congress contemplated when it enacted IGRA for the benefit of tribal governments and people, and as recognition of tribal sovereignty,” Light said. “Congress wasn't worried then about arbitrary numbers like 25 miles, and it shouldn't be using arbitrary numbers now. Yes, the landscape for Indian gaming has changed significantly since 1988, but there is little evidence that ‘reservation shopping’ is a nail that requires a sledgehammer. If it were a huge problem, the evidence might be dozens and dozens of tribes operating casinos on newly acquired land. That simply is not the case,” Light said. According to the Interior Department, around half a dozen off reservation casinos have been approved in the 23 years since IGRA passed.

Judy Shapiro, a Washington-based attorney who has practiced Indian law for more than 25 years, said the proposed legislation undermines IGRA’s original intent.

“In 1988, Congress recognized that federal Indian policies had created historical wrongs and disadvantages that left many tribes landless, and sought to address those disadvantages through the remedial exceptions of Section 20 of IGRA. By diluting those remedial provisions, Sen. Feinstein proposes to continue those injustices,” Shapiro said.

Valandra said that Feinstein is clearly interested in preventing additional gaming in the San Francisco Bay area that she represents, but questioned her motivation.

“One has to wonder out loud for the first time what interest is she actually protecting?” Valandra said. “One wonders what her end game is, whether she’s really protecting specific interests in and around the San Francisco Bay and Oakland area of tribes that have established gaming. I have to wonder what the motivation is for such an overreaching bill.”

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The likes of Dianne Feinstein and John McCain have always been enemies of Indian country. That being said, it is important to realize that casinos have the potential to hurt Indians not only because we're being increasingly addicted to gambling but also because the broader society starts resenting us. Every person who loses money in an Indian casino also becomes a potential Indian hater. We need to move to healthier pursuits.